134 A.3d 766
D.C.2016Background
- Parties: Ivana Cerovic (appellant, Serbian citizen) and Dusko J. Stojkov (appellee, U.S. citizen/attorney). They cohabited beginning in 2003 (Serbia and D.C.) and had a ceremonial wedding in Las Vegas on April 15, 2010; they separated in November 2010.
- Procedural posture: Stojkov sued for divorce (filed 2011). Cerovic claimed an earlier marriage (either Serbian non-marital cohabitation or D.C. common-law marriage) beginning in 2003. Trial court bifurcated issues, found no prior marriage, treated only the 2010 ceremony as the marriage, and entered equitable distribution orders (June 3 and Dec. 23, 2013).
- Key factual disputes: whether the parties’ relationship in Serbia/D.C. rose to a legal marriage-equivalent; extent of financial commingling; who incurred attorney’s fees and when (large fees by both parties during litigation).
- Trial-court rulings appealed: (1) applied clear-and-convincing standard to Cerovic’s claim of an earlier marriage; (2) held that Serbian non-marital cohabitation was not a “marriage” under D.C. Code § 16-910; (3) included divorce-related attorney’s fees as marital debt in distribution; (4) denied Cerovic alimony and denied/reduced her attorney’s-fee requests; (5) sanctioned Cerovic for late notice of foreign-law claim.
- Outcome below: trial court allocated substantial marital debt (including attorney’s fees) and denied alimony and fee awards to Cerovic; she appealed.
Issues
| Issue | Plaintiff's Argument (Cerovic) | Defendant's Argument (Stojkov) | Held |
|---|---|---|---|
| Standard of proof for proving an earlier common-law marriage between the same two people | Preponderance of the evidence suffices to prove a common-law marriage predating the 2010 ceremony | Trial court applied clear-and-convincing because a later marriage exists; higher burden required to rebut presumption in favor of later marriage | Court: preponderance applies where same two persons later ceremonially marry; trial court erred by applying clear-and-convincing and must reconsider under preponderance |
| Whether the parties had a Serbian "non-marital cohabitation" that constitutes a marriage-equivalent | Serbian law recognizes long-term cohabitation with marriage-like property rights; that status should be treated as a marriage for § 16-910 property distribution | Serbia is a civil-law jurisdiction and "non-marital cohabitation" is not a formal marriage; differences in termination and incidental rights mean it is not a marriage under § 16-910 | Court: Serbian non-marital cohabitation (per Serbian Constitution & Family Act) confers marriage-like property rights; comity requires recognizing it for § 16-910 purposes if proven; remand to apply preponderance standard and determine marital property/duration |
| Whether divorce-related attorney's fees can be classified as marital debt under D.C. Code § 16-910 and distributed | Fees were incurred during the marriage and litigation and were allocated previously; including them in marital debt is permissible | Fees are litigation expenses and should be addressed under § 16-911 (suit money), not as marital debt under § 16-910 | Court: attorney’s fees incurred in divorce/CPO litigation may not be treated as marital debt under § 16-910; they should be considered under § 16-911 (two-step need/amount analysis); trial court must exclude those fees from marital debt and reconsider distribution and fee awards |
| Denial of alimony and assessment of pendente lite support/rent issues | Trial court wrongly believed Cerovic had received more pendente lite support/use of house than she did; given income/visa history she needs alimony | Trial court found Cerovic able to support herself and that she had received pendente lite relief; denied alimony | Court: remand; because trial court relied on incorrect assumptions about pendente lite support and may need to adjust duration of marriage, alimony must be reconsidered under § 16-913 factors |
| Sanction for late notice of foreign-law claim (Rule 44.1) | Late submission was not prejudicial because Stojkov already raised Serbian-law issues and trial went forward at his counsel's request; sanction excessive | Rule 44.1 requires reasonable written notice of foreign-law issues; late notice justified sanction | Court: sanctions within trial-court discretion but the amount imposed lacks a clear nexus to the prejudice identified; trial court should reconsider the sanction on remand |
Key Cases Cited
- Coates v. Watts, 622 A.2d 25 (D.C. 1993) (common-law marriage must be shown by a preponderance of the evidence)
- Johnson v. Young, 372 A.2d 992 (D.C. 1977) (where an asserted earlier marriage precedes a later marriage to a different spouse, clear and convincing proof is required to rebut presumption favoring later marriage)
- East v. East, 536 A.2d 1103 (D.C. 1988) (absent a later marriage, common-law marriage proof requires preponderance)
- Bansda v. Wheeler, 995 A.2d 189 (D.C. 2010) (apply law of jurisdiction where relationship formed to determine whether relationship exists for § 16-910 purposes)
- Steadman v. Steadman, 514 A.2d 1196 (D.C. 1986) (American Rule on attorney's fees; exceptions are statutory or equitable)
- McClintic v. McClintic, 39 A.3d 1274 (D.C. 2012) (§ 16-911 requires a threshold showing of need to award suit money/attorney’s fees)
- Tydings v. Tydings, 567 A.2d 886 (D.C. 1989) (purpose of § 16-911 is to equalize litigation burdens and enable a spouse to conduct the case)
- In re Marriage of Huff, 834 P.2d 244 (Colo. 1992) (distinguishing separate statutory schemes for property division and attorney’s-fee awards)